It seems hardly a day goes by when another state doesn’t try to keep young people off the Internet. These attempts not only violate their First Amendment rights to interact with lawful speech, but everyone else’s as well, because the things platforms would need to do to comply with these laws inevitably impinge on everyone else’s rights to interact with online expression freely.

Fortunately challenges have been brought against many of these laws, and most have even been enjoined. Unfortunately, however, many of these injunctions have wound up appealed to the Fifth Circuit, which seems to be where the First Amendment goes to die. Even just on the online speech front there was NetChoice v. Paxton from a few years ago, challenging a social media regulation law, where the Fifth Circuit summarily ignored clear precedent in order to uphold the law, which the Supreme Court—yes, this Supreme Court—then had to undo with its combined Moody v. NetChoice decision and some shadow docket action (that challenge still lingers, waiting for the Fifth Circuit to eventually take another swing at it). And then just last year the Fifth Circuit undid two injunctions in age-gating laws in Free Speech Coalition v. Paxton and NetChoice v. Fitch, which this time the Supreme Court did not fix, and just last week did the same to the Texas App Store law, letting it go into force despite the injunction the district court had earlier granted in CCIA v. Paxton.

With the challenge to Louisiana’s unconstitutional age-gating law now before it in NetChoice v. Murrill, it seemed worth trying to see if the court could at last be convinced to join most other courts that have considered age-gating laws and see the constitutional infirmities with them, and so this week the Copia Institute—the think tank arm of Techdirt—filed an amicus brief to try to do so. In it we made three basic points: age-gating laws like Louisiana’s actually harm young people, they also harm everyone else, and, if this one were allowed, it would open the door to lots of other similar laws that would cause even more harm.

With regard to young people themselves, we first reminded that even young people have First Amendment rights, and that the Supreme Court has long held that the state has no role to play in deciding what ideas are suitable for them to encounter, which Louisiana is trying to do with this law. Even its tortured definition of a social media platform, which manages to exclude plenty of social media platforms (and, as the district court found, is unconstitutionally vague about which are covered or not), shows the state being selective as to which ideas were acceptable for young people to encounter.

Furthermore, as Australia’s experience with its social media ban for young people is illustrating, cutting young people off from social media causes explicit harm. Already there is evidence of young people experiencing isolation and being cut off from news, two ways young people are being hurt, which Louisiana now wants to risk for young people who they claim they are ostensibly trying to help. Louisiana’s law conditions access to covered social media platforms on parental consent, but it ignores that not every young person lives in a safe home with a caring parent who could give that consent. In fact, there is all sorts of offline harm that young people may be facing, including at home, which being cut off from social media means now being cut off from the help they may need to deal with it.

They also would face increased risk of identity theft from having to upload sensitive documents to try to verify their identity, as would everyone who now needs to provide them in order to be able to access any covered social media platforms. In its brief Louisiana argued that its age requirements were “nothing new, nothing costly, and nothing that compromises privacy.” But it is actually all three. As we explained, online age verification is nothing like the offline age verification we have used for such things as refusing to sell young people cigarettes—in general, young people could still enter the store and buy other things. We also noted the elevated identity theft risk, which news story after news story about database hacks shows is not a hypothetical concern. And then there is the privacy angle, because there is no way to ask, “How old are you?” without also inherently asking, “Who are you?” Given that the right of free expression also includes the right to express oneself anonymously, which the Supreme Court has recently emphasized, the latter is a question no one should be obligated to answer to be able to speak, and yet, with a law like Louisiana’s, everyone, young people and adults, would have to.

It’s also not just Louisiana’s law that we need to worry about. The problem is that if the courts can look past the constitutional problems with this one, then it can look past the constitutional problems with any of them, including ones that are even more onerous or restrictive. So even though Louisiana’s may not currently reach every user of every platform, it offers no comfort to anyone, for several reasons, with one of them being that even if the law just affects some social media platforms, it will still have chilling effects on anyone who might have used them for any purpose. As we explained to the court, the Copia Institute is in the business of expression and uses social media platforms to spread its expression. But if a law like Louisiana’s can go into effect, it could eliminate those platforms, large swaths of their users, or even the ability of the Copia Institute to use them at all. In other words, even though we write about age-gating laws, if they are allowed to go into effect we may lose the ability to tell anyone.

It’s important that laws like these remain enjoined, but maintaining a preliminary injunction is a separate area of concern raised by the Fifth Circuit’s recent jurisprudence, which keeps undoing sensible preliminary injunctions of laws like these unconstitutionally burdening speech rights. First, it should be enough for plaintiffs to anticipate that they will be harmed by such laws and seek preliminary relief enjoining them before they have had to directly experience such obviously inevitable expressive harm. Furthermore, courts are supposed to consider several factors in deciding whether to grant a preliminary injunction, including the likelihood of success of one of the parties and the risk of irreparable harm if the injunction is not granted. As even Justice Kavanaugh telegraphed in NetChoice v. Fitch, NetChoice is also likely to prevail in its constitutional challenge here.

But more importantly, the potential harm of perhaps unduly enjoining this law while the litigation challenging it continues pales to the harm of not doing so. If Louisiana’s law remains enjoined the status quo will be preserved, and no one will be any worse off than they were yesterday, last week, last year, or last century. As we also pointed out, the online interconnectivity of social media has existed in some form for upwards of forty years, dating back to pre-Internet dial-up bulletin board services in the 1980s. Generations of young people have grown up online since then and turned out fine.

But more importantly: the Constitution does not have an off switch. If these laws really do offend constitutional rights—as they clearly do—then they should not be able to offend them for even a moment. The Constitution protects rights every hour of every day, and there is no constitutional mechanism that allows them to be unilaterally taken away from everyone, even temporarily.

Even if you don’t live in California you’ve probably heard about the California primary coming up on June 2 (although early voting has already begun). In particular, you’ve probably heard about it because everyone and their brother has thrown their hat into the ring for governor, and, because it’s a “top-two” primary. Sometimes called a “jungle primary” (although Ballotpedia considers that only a primary where there can emerge a final winner counts as a true “jungle primary”), it means that Democrats and Republicans and all the third parties have their candidates mixed up in the same scrum, where the two who emerge with the most votes after June 2 will face off in the formal election in November. Which means that come November there could conceivably be two Democrats on the ballot—or, as some have fretted, two Republicans. There is far less Republican support in California than Democrat, but because there are so many Democratic candidates in the mix the fear is that they will dilute their own majority by having their support spread out over too many, and thus the two leading Republicans could sneak through to both the top spots.

Recent polls suggest that, especially now that some of the Democrats have dropped out, this fear of two Republicans probably won’t come to pass, although how this will ultimately turn out, especially given the clunky ballot design it’s caused by having so many candidates, remains anyone’s guess. (Difficult ballot design raises the possibility that people may not manage to mark the ballot for their preferred candidates.) But it isn’t just the gubernatorial campaign that raises the concern of party dilution; multiple offices on the June ballot have multiple candidates from the same party. And for all such offices it means that if you want, say, to make sure a Democrat is on the ballot in November, you might need to vote strategically and pick the Democrat currently doing best in the polls, even if it’s not the one you might prefer. California is a big state, and name recognition can really matter for popularity, which tends to favor incumbents and other people who’ve already managed to be in the public eye for some reason (like perhaps because they are billionaires and able to spend a lot of money on campaign ads…). It disfavors new candidates, or those just locally-known, even when they may bring something to the table that the more well-known candidates do not, because this set-up means that even their most ardent supporters might not be able to comfortably vote for them.

A big part of this problem is the jungle-ish primary itself. California inflicted it on itself via a proposition for dubious reasons, ostensibly to encourage politics to transcend party lines but with proponents possibly greedily eying the possibility of having slates of candidates in November elections who were all of one major party, with the other locked out, all the while failing to realize what 2026 is teaching: that this scheme could produce the exact opposite result of what they were going for. It also creates a potential constitutional problem for federal offices, because it ends up functioning as an extra requirement for candidates for the November federal office election: that the candidates first survived the jungle primary. And the Constitution is clear that no other requirements for a federal office, other than the ones it lists (age, citizenship, etc), are possible.

But the problems of the jungle primary would be much less acute if the election used ranked choice voting because it would allow voters to take a chance on a more long-shot candidate because even if that candidate doesn’t ultimately get enough support, the vote still won’t be wasted—it will instead be put towards the voter’s next preference. And by enabling voters to give support to everyone they think deserves it, in order of how much they think so, it allows a consensus to be formed that is much more accurate than this weird one-and-done game voters currently are forced to play, where they can only afford to lend support to a single candidate, which may make them have to choose between the one they want and the one they believe can win, especially when pitted against someone from an opposition party, lest none of the party they prefer potentially end up on the November ballot.

Of course, even with ranked choice voting this sort of jungle primary, where everyone from all parties are mixed up together, is still dumb, at least as long as we still have party politics. If we think it important that party affiliation matter, it would make a lot more sense to have voters use the primary to pick the party’s best representative and then match those representatives against each other in November. But as long as the jungle primary is turning the election into something where we are apparently trying to determine the top two choices overall, ranked choice voting better serves that goal by allowing voters to work towards their top choice, one that truly represents their affirmative preference for who they think should be in office, rather than be forced to spend their vote navigating the strategic concerns of who will end up on the final November ballot.

And even if the jungle primary is done away with, ranked choice voting will still be worth having, even in partisan primaries. Even when the choice is only between, say, a clump of Democrats, we want there to be a way for lesser known candidates to get the political support they can get by lowering the political cost of voters trying to give it to them. Voters could more easily make their number one choice a lesser-known candidate, because if that choice can’t prevail, with the same ballot voters can still choose among the more well-known as a fallback position. Whereas now if they take the chance on the lesser-known, they will not be able to offer any support to any of the remaining choices, no matter how much they may prefer one over another. If they spend their vote on someone less popular, it is all but thrown away.

As now-Mayor Mamdani exemplifies, as someone who was a relative outsider and able to emerge a popular leader thanks to ranked choice voting, it’s important for the health of democratic politics to be able to have a system friendly to new ideas, which can ultimately turn out to be extremely popular if given a chance. Ranked choice voting means we can finally give them one.

John Roberts has a point: the Supreme Court—even this Supreme Court—sometimes gets things right. Maybe one could even fairly say it often gets things right. After all, just recently it produced good decisions in Case v. Montana, Cox v. Sony, and First Women’s Choice Centers v. Davenport, and arguably even Chiles v. Salazar, along with plenty more that have quietly taken their place in the annals of American jurisprudence with little fanfare but the staying power we look to the Court’s opinions for, to continue to speak well into the future about the contours of our law. These were decisions where there was significant accord among all the justices because the legal questions before them were just not that hard to resolve. Either statutory language, constitutional text, or previous precedent required certain results, and Roberts is correct: this Court is fully capable of producing them.

The issue, however, is that it doesn’t always. And when it doesn’t it is not because it’s getting tripped up by close calls where either the precedent or guiding text isn’t clear, or the facts are so unfortunate that they obscure what the law requires. The issue is that the law is as equally clear in cases where the Court produces deviant results as in the cases where the Court gets things right; it just doesn’t care to follow it consistently. If it wants a different result than what the law directs then that is the result it will find the votes for.

Roberts is of course also right that non-lawyers often can’t tell what the law indeed requires; the general public is much more likely to judge a decision based on how it affects the interests they favor. Which is why Roberts has a fair point to think the Court may be unfairly criticized in decisions like Chiles, First Women’s Choice Centers, or even 303 Creative, cases where interests many understand to be harmful to others nevertheless apparently prevailed. It is difficult, for instance, for non-lawyers to see how a win for those who discriminate is nevertheless a win for those who are discriminated against, because while a win for the former may seem like a loss for the latter in the short term, it’s the rationale being upheld by the decision that will ultimately amount to a more important gain for the vulnerable in the long term.

But one reason people are struggling to see these controversial but correct decisions as fortifications of their own future freedom is because they don’t believe that when their interests are at stake the Supreme Court will still apply the same principles this time in their favor. They fear that the Court will instead find a way to advance the interests it prefers, and it’s a fear that is eminently reasonable. The hypocrisy the justices regularly display in their jurisprudence when one of their favored interests is at stake forecloses any rational person having any faith in them as neutral jurists ably applying the law, even if it’s true that sometimes they are.

Roberts only has himself and his Court to blame for so many having that view. They have made it impossible for anyone to believe the Court will uphold principle and precedent because of how often it has not. It is happy to change the rules that we must all play by whenever it suits it, redrawing the rights we depend on as well as the ability to use the courts to shape them. And it’s not just laypeople who’ve noticed the problem but legal professionals. It’s lawyers, including members of the Supreme Court Bar who practice before them. It’s law professors, including those who have been teaching new generations of law students what were supposed to be timeless principles of American jurisprudence, which the Court so regularly and casually upends. It’s legal commentators, including those who specialize in watching this court. It is people who are experienced, if not expert—and if not at least as expert as anyone on the Court—in the American legal tradition who are calling foul. They are noticing how the Court keeps inventing arbitrary and imaginary rules, if not also facts, in order to arrive not where the law points but where the conservative justices steering the Court’s majority instead prefer to go.

It might be one thing if it were the rare case here and there in its busy docket where the Court has simply been sloppy in its jurisprudence. But the cases where the conservative majority has refused to produce jurisprudentially conservative results, instead elevating preferred outcomes over precedential reasoning, are hardly the exception; at this point it has become the apparently deliberate rule that when certain issues are on the table—partisan politics, reproductive freedom, LGBTQ+ rights, race relations, to name just a few areas where the conservative justices have particularly strong views—the Roberts Court will eagerly jump in to advance them, regardless of whether either substance or procedure—or consistency—even invites such an intervention, let alone their favored result. In fact it is fairly shocking to encounter the rare occasion where the Court has instead restrained itself—although it is certainly glad to when other interests the conservative majority is less dogmatically interested in advancing are instead on the table.

Furthermore, that its docket is so busy is entirely because the Court has abdicated any pretense of restraint, greedily helping itself to matters that historically would have been regarded as unripe for its consideration. In fact, it is a bit rich for Roberts to complain how the Supreme Court is being unfairly disrespected given the extent to which its new practice of aggressively insinuating itself in substantive adjudication of matters before there even is a lower court ruling or record ready for review has itself undercut the respect due the lower courts. What the Court has been doing, particularly with its Shadow Docket, goes far beyond the appellate review it is normally entitled to do. Not only does the Supreme Court’s incessant snatching of matters away from the lower courts prematurely arbitrarily diminish the lower courts’ power to render considered opinions on the questions before them, but it has also been having the practical effect of undermining their ability to speak with any authority on the law at all, let alone enforce it. Would only Roberts shed the same tears for the insult the lower courts have actually suffered as he does for himself as the cause of it.

Instead, and apparently without any capacity for introspection or self-reflection, he protests that the criticism increasingly directed at the Court is not also increasingly deserved. We should, he insists, be judging his Court based on what it gets right. But we do not celebrate a reckless driver for all the people he didn’t run over, or careless chef for all the diners he didn’t poison, or distracted doctor for all the patients he didn’t kill. In the American legal tradition we judge harshly those who cause injury to the public well-being, especially with behavior beyond the bounds of what law allows.

And with the Roberts Court there is so much to judge.

Shortly before the Supreme Court inflicted enormous damage on the Voting Rights Act, the Reconstruction Amendments of the Constitution, any pretense of constitutionally guaranteed Equal Protection, the civil rights movement, its credibility, and our democracy writ large with its Alito-penned decision in Louisiana v. Callais, it released a separate decision in First Women’s Choice Resource Centers v. Davenport.

In terms of overall substance, this latter case was one where an anti-choice plaintiff got a win, which perhaps is why there was little trouble in the Court reaching a unanimous result in its favor. But it is just a procedural win, allowing its case to go forward, rather than a judicial validation of its actual viewpoint. (“This case presents a narrow question. We are not asked to decide the merits of First Choice’s federal lawsuit, only whether it may proceed.” [p. 5]). And, more importantly, it is a strong First Amendment win, with language that will be useful in later cases, including ones where more liberal positions have been impacted by government overreach. (“We have recognized […] that associational rights carry
special significance for political, social, religious, and other minorities. With the freedom to associate, minorities can ‘show their numerical strength,’ influence policy, and ‘stimulate competition’ in the marketplace of ideas. But take that freedom away and ‘dissident expression’ stands particularly vulnerable to marginalization or outright ‘suppression by the majority,’ leaving all of society poorer for it.” [p. 7]). And it will be useful in cases in federal and state courts all over the country, where it is binding precedent, and not just at the Supreme Court, which can blow with the wind depending on whose case is before it.

In other words, it is a decision that is likely to matter, and in a way that is good news for the First Amendment and the rights it protects, particularly with respect to associative freedom, the anonymity such expressive relationships depend on, and the standing needed to be able to challenge government intrusions on either, including by way of subpoenas.

In this case the plaintiff, First Women’s Choice Resource Centers, Inc., is what is sometimes referred to as a crisis pregnancy center. Despite the plaintiff’s name invoking “choice” such places are not about informing pregnant women about the full range of choices available to them. They instead steer them towards avenues that do not include the medical care needed to potentially terminate their pregnancy. The issue however is not that those running these centers don’t wish to support abortion but that they may be deceptively ensnaring vulnerable women who think they are getting more comprehensive advice about their choices than the limited information these centers offer, which has led some states, like New Jersey, to investigate whether they are indeed duping people.

But in this case New Jersey—the defendant in this case—as part of its investigation tried to subpoena the plaintiff for names of its donors (“Effectively, that demand required First Choice to provide personal information about donors who gave through two other websites, through the group’s various social media pages, by mail, in person, or by any other means.” [p. 2-3]). The stated rationale for seeking this data was to ensure that no donor had similarly been deceived as to the services the plaintiff delivered. [p. 3]. The plaintiff’s attempt to avoid the subpoena led to litigation in both state and federal courts, with the state seeking to enforce the subpoena in the former and the plaintiff bringing a civil rights lawsuit in the latter, alleging that the subpoena violated its First Amendment rights.

A federal law—42 U. S. C. §1983—authorizes suits against any person who, under color of state law, deprives another of his federal constitutional rights. First Choice filed a complaint under that statute, arguing, among other things, that the Attorney General’s demand for information about its donors violated its First Amendment rights. Specifically, First Choice observed that the First Amendment “prohibits the government from discouraging people from associating with others” “in pursuit of many political, social, economic, educational, religious, and cultural ends.” And, First Choice alleged, the Attorney General’s subpoena had just that impermissible effect. For its donors, the group represented, “anonymity is of paramount importance,” and its inability to guarantee that anonymity in the face of the Attorney General’s demands injured the group by discouraging donors from associating with it. [p. 3-4]

The federal district court dismissed the suit, largely on the grounds that because the state litigation had not yet resulted in the subpoena being enforced the plaintiff hadn’t suffered an injury it could sue over, [p. 4-5], and the Third Circuit upheld the dismissal. [p. 5]. With this decision, however, the Supreme Court has now allowed the federal lawsuit to go forward, finding that the plaintiff indeed has the standing to challenge how the subpoena affects its First Amendment rights.

“Standing” has to do with whether a party is eligible to bring a certain lawsuit. Courts can only hear legitimate “cases and controversies,” [p. 5], and standing helps ensure that the litigation put before it meets that criteria by ensuring that the parties bringing it are entitled to. [p. 5-6]. They are only entitled to if they have an “injury in fact,” caused by the defendant, and the litigation is capable of redressing it. [p.5].

This case focused on whether the injury-in-fact element was satisfied. [p. 6]. It can only be satisfied when the litigation involves “an injury that is concrete, particularized, and actual or imminent.” [p. 6]. And here the Court found that there was such an “actual and ongoing” injury, caused by the subpoena itself. [p. 6]. In fact, even though the state litigation had not yet resulted in the subpoena being enforced made no difference; it was the very existence of the subpoena that was so chilling to the plaintiff’s First Amendment rights. (“Even if a subpoena targeting First Amendment activity is never enforced in court, [it] will give its targets a very good reason to clam up [and] give the target organization’s members and supporters a very good reason to abandon the cause.” [p. 12]).

The reason is that the plaintiff is allowed to hold its anti-abortion views. And others who share those views are allowed to associate with the plaintiff, including by giving it support. But if those others had to fear the government showing up at their door to discuss their views, they would be reluctant to continue their association with the plaintiff. And that reluctance would result in harm to the plaintiff, now unable to associate with others as freely as they should have been able to and would have been able to if the subpoena had not given rise to the fear that their donors’ identities would be discoverable by the government.

Finally, consider First Choice’s two unrebutted declarations. In the first, several donors represented that “[e]ach of us would have been less likely to donate to First Choice if we had known information about the donation might be disclosed” to the Attorney General. The donors added that they submitted their declaration anonymously because they feared what they called the Attorney General’s “record of hostility toward pro-life groups.” I the second declaration, First Choice’s executive director stated that the Attorney General’s demand threatened to “weaken [the group’s] ability to recruit new donors . . . as prospective partners would be hesitant to risk the revelation of their personal information through government investigation.” All this is more than enough to establish injury in fact under our precedents. An injury in fact does not arise only when a defendant causes a tangible harm to a plaintiff, like a physical injury or monetary loss. It can also arise when a defendant burdens a plaintiff ’s constitutional rights. […] All this occurs not just when a demand is enforced, but when it is made and for as long as it remains outstanding. [p. 11-12]

As the Court reminded, associative freedom is protected by the First Amendment.

The First Amendment guarantees all Americans the rights to speak, worship, publish, assemble, and petition their government freely. Each of these rights, this Court has “‘long understood,’” necessarily carries with it “‘a corresponding right to associate with others.’” […] Appreciating all this, we have held that government actions tending to “curtai[l] the freedom to associate” warrant “the closest scrutiny” under the First Amendment. […] We have also held that “compelled disclosure of affiliation with groups engaged in advocacy” can “constitute a[n] effective . . . restraint on freedom of association.” [p. 6-7]

As is the anonymity that expression, including associative expression, often requires.

[In NAACP v. Alabama we observed] the “vital relationship” between “privacy in one’s associations” and the “freedom to associate.” Strip away the ability of individuals to work together free from governmental oversight and intrusion, and the freedom to associate may become no freedom at all—individuals deterred, groups diminished, and their protected advocacy suppressed. [p. 8]

[…]

Since NAACP v. Alabama, we have faced many cases along similar lines. In them, one state authority or another has demanded private donor or member information. And in one case after another we have subjected those demands to heightened First Amendment scrutiny. Throughout, we have emphasized the critical role “‘privacy in . . . associatio[n]’” plays “‘in preserving political and cultural diversity and in shielding dissident expression from suppression.’” We have acknowledged, too, that demands for private donor information “inevitabl[y]” carry with them a “deterrent effect on the exercise of First Amendment rights.” [p. 9]

Yet here was a subpoena now threatening both.

Each of these strands tightens the braid into one conclusion. From its allegations and declarations, and given our many and longstanding precedents in the area and reasonable inferences about third party behavior, First Choice has established that the Attorney General’s demand for private donor information injures the group’s First Amendment associational rights. [p. 13]

It is conceivably possible that on remand the lower courts might find the rationale behind the subpoena “’sufficient to justify the deterrent effect’ associated with the disclosure demand, [p. 8], and narrowly-tailored enough, [p. 10], such that there was in fact no actual intrusion on the plaintiff’s First Amendment rights stemming from its issuance. This decision by the Supreme Court does not resolve the question; it only determined that the question could be brought before the courts. But the same analysis that allowed the Supreme Court to identify a likely constitutional injury, enough for the plaintiff to be able to bring the case before the courts to seek a remedy, may yet be employed to find there indeed was an injury that requires redressing—here, by quashing the subpoena.

But regardless of what ultimately happens to the plaintiff’s case, this decision by the Supreme Court has broader implications. First, it doubles-down on prior precedent protecting freedom of association and the anonymity it depends on, and second—and perhaps more practically—it directly ties these First Amendment interests to the discovery instruments propounded by government actors, often too casually, seeking to unmask people. It makes clear that the intermediaries receiving these unmasking demands have their own cognizable First Amendment rights in being able to preserve the anonymity of those who associate with them, with the standing to challenge when those rights are trampled. And although this case addressed organizations and their donors, it is but a small analytical step to apply the same or similar reasoning to Internet platforms seeking to protect the identities of their users from seeking to unmask anonymous speakers, especially in concert with McIntyre v. Ohio Elections Commission, regarding the First Amendment protection for anonymous speech, and Moody v. NetChoice, regarding the First Amendment’s protection of platforms’ editorial and associative discretion. Per this decision, those unmasking attempts can amount to a constitutional injury to the platforms themselves, which they now have compelling new precedent to use to fight them.

First, some of the good news: certain AI models—currently Anthropic’s Mythos, but surely others are well on their way if they haven’t already arrived—turn out to be really good at finding cybersecurity vulnerabilities. As Anthropic itself reported:

During our testing, we found that Mythos Preview is capable of identifying and then exploiting zero-day vulnerabilities in every major operating system and every major web browser when directed by a user to do so. The vulnerabilities it finds are often subtle or difficult to detect. Many of them are ten or twenty years old, with the oldest we have found so far being a now-patched 27-year-old bug in OpenBSD—an operating system known primarily for its security.

That’s quite the tool, if it can help find vulnerabilities so that they can be patched.

But it’s also quite the tool to help find vulnerabilities so that they can be exploited. Like so many tools, including technological tools, whether they are good or bad depends entirely in how they are used. A hammer is a really helpful tool for building things, but it also smashes windows. And with this news, AI now has the capability for some really destructive uses.

To try to prevent them, Anthropic is working with some of the largest tech companies in the world to let them use a preview of its model on their own software to help QA them and proactively patch vulnerabilities. As Casey Newton reports:

Anthropic announced Mythos alongside Project Glasswing, an initiative with more than 40 of the world’s biggest tech companies that will see Anthropic grant early access to the model to find and patch vulnerabilities across many of the world’s most important systems. Launch partners in the coalition include Apple, Google, Microsoft, Cisco and Broadcom.

They’ll be tasked with scanning and patching their own systems along with the critical open-source systems that modern digital infrastructure depends on. Anthropic is giving participants $100 million in usage credits for Mythos, and donating another $4 million to open-source security efforts.

This sounds like a great program. It also should be noted that the Mythos model is not consumer-grade AI; it takes expensive, dedicated infrastructure to run, which means that, at least for the moment, there’s not an imminent danger of it being misused. But trouble is nevertheless brewing, and someday it will be here, which raises certain questions, like:

(A) What about other AI models, which will inevitably be similarly powerful? What if they are produced by less ethical companies, who would have no compunction against rogue actors using their systems in destructive ways that Project Glasswing won’t have intercepted?

(B) And what about every single legacy technology system in use, which Project Glasswing is unlikely to be able to retroactively fix? Large, resourced companies may be able to weather the on-coming storm, but what about your local dentist office? Or a hospital? Municipal IT systems? Networked technology is everywhere, and these smaller businesses and institutions are likely to both have older, unpatched technology and also fewer resources to update and secure them, or deal with the consequences of a hack, which can be devastating for the business or the people they serve.

On the other hand, there does seem to be one other bit of good news with this revelation: governments, including that of the United States, have often engaged in the dubious practice of hording zero-days, or collecting information about vulnerabilities that they then kept secret so that they could exploit them themselves by using them on an adversary. For those unfamiliar, “zero-day” refers to a vulnerability that has yet to be disclosed, which is why it’s on “day zero,” or before the first day of it being a known vulnerability that could now be fixed.

Mythos’s capabilities would seem to obviate this strategy, because suddenly the stash of unknown vulnerabilities isn’t really going to be such a secret, since anyone using the model will be able to find them. Mythos’s existence changes the balance of interests, where the stronger national security play by the government would be to disclose any discovered vulnerability to the vendor as soon as possible so that they can be patched and our nation’s systems more secured. Arguably that was always the better national security play, but now there’s definitely no upside to trying to keep them secret because it now definitely needs to be presumed that adversaries will be able to find and exploit them. They’ll have the tools.

With these AI models we’re going to need to presume that everyone is going to have the tools to know about every vulnerability. Up to now there has been at least the illusion of some security, because vulnerabilities couldn’t be exploited if no one knew about them, and finding vulnerabilities is hard. But now that it will be easy, the risk to the nation’s cybersecurity is greater than we have ever before contended with.

It is also not really a great harbinger that we know about Mythos because… a copy of the software got leaked. It’s just the software that was leaked and not the models it uses to tune its “reasoning,” which means that anyone trying to now build their own Mythos is still missing an important piece if they want to mimic its full capabilities, but they would have a lot. Which is probably why Anthropic has been sending DMCA takedown notices to have the leaked software removed from the Internet.

But doing so raises a related issue: the role of copyright law when it comes to “vibe coding,” or “having an AI system write the software rather than a programmer, just by instructing it on what to do. It’s especially important in light of the cybersecurity concerns always raised by software (and including vibe-coded software, as we’re having to trust that what’s produced does not have vulnerabilities). Copyright requires a human author, which raises the question: can software written by an AI be copyrightable? The answer would appear to be no, unless there was a great deal of creative effort on the part of a human being to instruct the AI or modify the output. But as Ed Lee chronicled, per Anthropic itself, even its own software (“pretty much 100%”) is being written by AI. And if that’s the case, then Anthropic has no business sending takedown notices for its software because DMCA takedown notices are only for demanding the removal of copyrighted works, which, it would appear, Anthropic’s own code does not qualify for.

But maybe it’s better if software stops being subject to copyright. “Vibe coding,” is becoming increasingly efficient, to the point that there is likely no need for copyright to incentivize its authorship. Instead, what public policy really needs to emphasize is that whatever software is produced is secure software. But in many ways copyright obstructs that goal, like through its lengthy terms, which mean that while a copyright holder might not still be maintaining its older software, no one else can maintain and patch it either, without potentially infringing the software’s copyright.  Or through its privileged secrecy (unusually for copyright, when it comes to software you don’t actually have to disclose all the actual code to register a copyright in it!) and other powers to lock out security research efforts, like through Section 1201 of the DMCA, when such efforts aren’t specifically supported by the developer–assuming the developer supports any security testing at all, as right now there aren’t necessarily the incentives to make them care about it.  Instead public policy has given them the ability, like with copyright, to escape oversight of the security of their software products, even as those products end up embedded in more and more of our lives.

It’s time to change that focus and get copyright out of the way of making software security our top policy priority.

And fast.

The Supreme Court has now issued its decision in Cox Communications v. Sony Music Entertainment. This was a case where Cox, a broadband provider, had been held liable for the alleged copyright infringements of its users, in this case via filesharing. It appealed, arguing that such secondary liability was not something that copyright law allowed. And the Supreme Court has now agreed. Cox won its appeal, in a pretty big way. But the implications may be even bigger, for copyright law, but especially for the Internet because, once again, the Court has limited secondary liability for platforms—and that’s a big deal for Internet law.

Setting the stage

While direct liability is about holding a wrongdoer responsible for their actions, secondary liability is about holding someone else liable for the wrongdoer’s actions. It’s a concept that comes from common law, but it has historically been limited in its applicability because it can be so chilling to helpful behaviors we might want to encourage—like platforms providing Internet services—when engaging in them can put the helper on the hook if someone they helped does something wrong. Our sense of justice and fair play also tends to want there to be more culpability on the part of the helper before it would seem right to subject them to shared liability with whomever they helped.

But that restraint has been diminishing in modern jurisprudence. In the copyright space it started to be lost a century ago, as some expansive theories of secondary copyright liability began to take hold allowing defendants to be held liable for other people’s infringements. Although the Supreme Court’s 1984 Sony v. Universal Music decision held the line on this expansion, where Sony was not held liable for the fact that people could use its VCRs to infringe copyrights because the VCR was also capable of substantial non-infringing uses as well, liability theories continued to expand up through the Court’s 2005 decision in MGM Studios v. Grokster, where it found Grokster liable for other people’s filesharing, and beyond. This case of Cox v. Sony is one of several similar cases that have been working their way through lower courts, where broadband ISPs were being held liable for the filesharing of their users using secondary liability theories that were even more expansive than anything the Supreme Court had previously endorsed.

And in the Internet law space secondary liability pressure has continued to increase as well, both by platforms becoming subject to more and more regulatory pressure predicated on liability that would attach based on how people used their systems if the platforms didn’t take active steps to curb those uses, and by the statutory protection that could have shielded them from it, like Section 230 and Section 512 of the Digital Millennium Copyright Act, starting to be weakened in favor of allowing liability. There may be several reasons for this trend, but one big one is that the more accepted secondary liability has been in copyright law, and the more tolerated the censorial consequences of such pressure in copyright law have been, the more it seemed reasonable to apply secondary liability to other forms of liability as well, censorial consequences be damned. Which is why this case is such a big deal, because it helps put the brakes on that platform liability trend.

The decision itself

As the Court noted in its decision, the copyright statute itself only provides for direct liability for infringement. [Majority p.6]. So if there’s going to be secondary liability, it will be something for the Courts to infer using traditional common law principles. [Concurrence p.3-4]. Over the years such inferences have led courts to fine to two avenues for there being secondary copyright infringement: “contributory” liability and “vicarious” liability. [Majority p.2]. “Vicarious” liability wasn’t an issue in this case because the Fourth Circuit had already concluded that Cox did not “receiv[e] a direct financial benefit from its subscribers’ infringement,” and the Court had declined to review Sony’s appeal of that aspect of the decision. [Majority p.6]. But with respect for contributory liability, the Court says that it can attach for only two reasons: because a defendant has distributed or provided a product or service that is incapable of substantial non-infringing uses (which it took from the Sony decision), or a defendant has induced another to infringe (which it took from Grokster).

The provider of a service is contributorily liable for a user’s infringement if it intended its service to be used for infringement. To establish that a provider intended its service to be used for infringement, a copyright owner must show one of two things. First, it can show that a party affirmatively “induc[ed]” the infringement. Or, second, it can show that the party sold a service tailored to infringement. [Majority p.2]

Furthermore, contributory liability could only apply when there was the intent that the defendant’s service be used for infringement.

The provider of a service is contributorily liable for the user’s infringement only if it intended that the provided service be used for infringement. The intent required for contributory liability can be shown only if the party induced the infringement or the provided service is tailored to that infringement. A provider induces infringement if it actively encourages infringement through specific acts. […] A service is tailored to infringement if it is “not capable of ‘substantial’ or ‘commercially significant’ noninfringing uses.” [Majority p.7]

And perhaps more importantly, the Court found that intent could not be construed by the defendant having some knowledge that infringement could be occurring.

This Court has repeatedly made clear that mere knowledge that a service will be used to infringe is insufficient to establish the required intent to infringe. In Kalem Co., the Court explained that “mere indifferent supposition or knowledge on the part of the seller” that the buyer will use the product unlawfully is “not enough” to make the seller liable for the buyer’s conduct. 222 U. S., at 62. In Sony, the Court explained that “[t]here is no precedent in the law of copyright” for liability based only “on the fact that [the defendant] has sold equipment with constructive knowledge of the fact that its customers may use that equipment to make unauthorized copies of copyrighted material.” 464 U. S., at 439. And, in Grokster, the Court confirmed that “a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement.” 545 U. S., at 939, n. 12. [Majority p.8-9]

Ultimately, the Court found that neither theory of contributory liability applied to Cox because it lacked the intent for its services to be used for infringement.

Thus, Cox is not contributorily liable for the infringement of Sony’s copyrights. Cox provided Internet service to its subscribers, but it did not intend for that service to be used to commit copyright infringement. Holding Cox liable merely for failing to terminate Internet service to infringing accounts would expand secondary copyright liability beyond our precedents. Cox neither induced its users’ infringement nor provided a service tailored to infringement. As for inducement, Cox did not “induce” or “encourage” its subscribers to infringe in any manner. Id., at 930. Sony provided no “evidence of express promotion, marketing, and intent to promote” infringement. Id., at 926. And, Cox repeatedly discouraged copyright infringement by sending warnings, suspending services, and terminating accounts. As for providing a service tailored to infringement, Cox’s Internet service was clearly “capable of ‘substantial’ or ‘commercially significant’ noninfringing uses.” Id., at 942 (Ginsburg, J., concurring). Cox did not tailor its service to make copyright infringement easier. Cox simply provided Internet access, which is used for many purposes other than copyright infringement. [Majority p.9].

In a concurring opinion, Justice Sotomayor, joined by Justice Jackson, took issue with the majority’s analysis, raising the concern that there were more possible vectors of secondary liability than the two the majority addressed, like “aiding and abetting” liability, and that prior precedent had left open the possibility that they could apply. Yet the majority here had not only ignored these other approaches but effectively shut the door to them ever applying in the copyright space.

The majority holds that Cox is not liable solely because its conduct does not fit within the two theories of secondary liability previously applied by this Court. In so doing, the majority, without any meaningful explanation, unnecessarily limits secondary liability even though this Court’s precedents have left open the possibility that other common-law theories of such liability, like aiding and abetting, could apply in the copyright context. [Concurrence p.1]

Her concurrence was a concurrence, however, and not a dissent, because she, too, found that even aiding and abetting liability wouldn’t apply to Cox because it also lacked the intent such liability required.

Plaintiffs must prove that Cox intended to aid, and therefore help make succeed, copyright infringement committed by those who use its network. To do so, plaintiffs point out that Cox, having received copyright-violation notices, knew that specific connections it services have been, and will continue to be, used to infringe copyrights. Because Cox nonetheless continued to service those connections, plaintiffs argue that the jury could have found that Cox intended to facilitate infringement committed using those connections. This record, however, cannot support finding the necessary intent for aiding-and-abetting liability to attach. To begin, Cox is merely supplying internet service to its customers. Nothing about that conduct is inherently culpable: Most internet traffic is lawful, and supplying an internet connection is just as consistent with lawful purposes as it is with unlawful purposes. See id., at 292 (“[R]outine and general activity that happens on occasion to assist in a crime . . . is unlikely to count as aiding and abetting”). Nor have plaintiffs shown that Cox intended to aid specific instances of infringement. That is because, based on plaintiffs’ evidence, Cox does not actually know that specific users will commit infringement using Cox’s network. Cox supplies internet connections to a wide range of customers, ranging from single users all the way to smaller regional ISPs. When Cox receives a copyright violation notice, however, the notice specifies only which connection was used to infringe, not who used it to commit infringement. [Concurrence p.10-11]

The implications

Despite the disagreement between Justices Sotomayor and Thomas, the decision is still good news for platforms. Even if she’s right and secondary liability may now technically be more limited than it should be in the copyright context, the upshot is that it’s still limited, and the decades, if not century-long expansion of secondary liability for copyright has now been halted. And even if her view of a more expansive catalog of secondary liability sources were to eventually be applicable, even per the concurrence these sources would still require more careful and limited application than has been the trend.

All of which is good for several reasons. First, because it brings copyright law back in line with general common law doctrine that counsels restraint in applying secondary liability. Copyright law had started to be treated as exceptional, where that restraint was cast aside with little policy justification, especially given that even Congress itself was not building secondary liability into its own copyright statute. Furthermore, by bringing copyright law back in line with traditional common law principles it means it can no longer stand as a model to encourage secondary liability expansion with respect to other forms of liability. For too long the exception had started to become the rule, where an attitude of “well if it’s ok for copyright it must be ok for this…” so having the Supreme Court say it is not actually ok for secondary copyright liability to be so expansive will hopefully be tempering for all forms of secondary liability.

It is also significant that both the majority and concurring opinions express concerns with how “knowledge” has often been construed to equate to culpable conduct. Neither accepts that what Cox technically “knew” about potential user infringement could amount to culpability. Sony had argued that because Cox hadn’t (by and large) terminated accused infringers it was therefore liable for their infringements, and this theory was largely rejected. Indeed, both authoring justices seemed especially disturbed by the fact that IP addresses were being used as a proxy for knowledge of an individual infringement when, given that so many connections were shared by households, coffee shops, hospitals, or other institutions, such an inference was often impossible to arrive at. [Majority p.3].

Given this degree of removal from the infringing activity and Cox’s incomplete knowledge, Cox cannot be found to have intended to aid in any specific instance of infringement committed using the connection that Cox provides to the regional ISP. The same is true for connections Cox provides to university housing, hospitals, military bases, and other places that are likely to have many different users. Without proof that Cox knew more about individual instances of infringement, and without evidence of “pervasive, systemic, and culpable assistance” needed to support a more generalized theory of liability, see Twitter, 598 U. S., at 502, plaintiffs have at most shown that Cox was “indifferent” to infringement conducted via the connections it sells. Id., at 500. Mere indifference, however, is not enough for aiding and abetting liability to attach. Smith & Wesson, 605 U. S., at 297. [Concurrence p.12]

It’s also the practical effect of this decision on platforms that stands to be most important for the Internet. The fear of expansive secondary liability has provided immense pressure on platforms to proactively, if not also needlessly, censor the user expression they facilitate in order to avoid it. It certainly has in the copyright space, where platforms have had to remove speech, and even speakers, in an attempt to avoid it, and there has been increasing concern that such secondary liability for other forms of alleged wrongdoing would result in platforms finding themselves taking similar censorial action against other expression they facilitate in order to avoid it as well. They still potentially could, if such secondary liability is prescribed by statute. But there are now several Supreme Court decisions that such a statute would need to overcome: this one, which says that such liability would be an exception from traditional common law rules, and NRA v. Vullo, which points out how statutes seeking to censor via regulatory pressure on intermediaries is unconstitutional, should a regulator try to statutorily create such an exception anyway.

This decision should also hopefully take some pressure off the statutory protections from liability that platforms still depend on, namely the DMCA and Section 230. Indeed, with this decision we’ve come a long way from 2020 when Justice Thomas terrified everyone who cares about the Internet by waxing poetic about whether it was time to revisit the jurisprudence allowing Section 230 to work the way it does. Without Section 230 doing its job of insulating platforms from liability in the user expression they facilitate, and liability from how they moderate it, it would make it difficult if not impossible to even have Internet platforms available to do either of those important things that make the Internet work. And the same with the DMCA, which protects platforms from the copyright liability that Section 230 doesn’t cover, although its protection has been more porous, which is why platforms have had to take down so much expression in order to avoid copyright liability that could potentially adhere in the statutory protection’s coverage gaps.

The decision doesn’t obviate the statutory protection, however, as Justice Sotomayor worried. In her concurrence she wondered what the point of the DMCA would be after this decision if there is no secondary liability to be had without it. [Concurrence p.5-7]. For his part, Justice Thomas noted that it would still provide a defense, but no more could the potential failure to qualify for a safe harbor be automatically considered the grounds for liability. [Majority p.10]. But both the DMCA and Section 230 still have an important job to play. After all, they still protect platforms from being drained by unmeritorious litigation because it’s the cost of the defense and not just the potential liability that are so destructive to platforms ability to be platforms. As it is, we’ve already lost platforms who were bankrupted by the cost of finding out they weren’t liable, and we still need the statutory protection, for both copyright, with the DMCA, and everything else, with Section 230, to operate to make sure no more platforms will suffer a similar extinctive fate.

But it does make both statutes a lot less load-bearing in how they insulate platforms from that actual liability itself, because with this decision, as well as the earlier Twitter v. Taamneh decision—both ironically written by Justice Thomas—underlying liability should now be a lot harder to find.

The Supreme Court’s decision last year in U.S. v. Skirmetti, upholding a law depriving young trans people the healthcare they need, is insupportable, rendering people unequal in a way the Constitution cannot possibly suborn. But its new decision in Chiles v. Salazar regarding the First Amendment standard to use regarding Colorado’s law regarding conversion therapy is different. Despite its similar subject matter relating to sexual orientation and gender identity sounding similar to Skirmetti, it’s actually another 303 Creative, another case that endorsed bigoted views unacceptably hostile to LGBTQ+ people. But for much the same reason that 303 Creative was an important articulation of the First Amendment’s expansive protection—despite the apparent prejudice the plaintiff (and the Court) advanced—so is this decision.

That’s what’s good about this decision, that it recognizes that the First Amendment operates in the professional licensing space and requires heightened scrutiny before states can be permitted to constrain licensing when those constraints are predicated on viewpoints expressed by the licensee, including as part of the provision of services. Heightened scrutiny is what makes the First Amendment’s protections meaningful, and the Court has not always been consistent or coherent in requiring it, particularly with respect to licensure. But when heightened scrutiny isn’t required, it becomes much harder to fight censorial actions taken by the government, including those driven by animus, and including those driven by anti-LGBTQ+ animus—which would also include those actions targeted at therapists supporting LGBTQ+ patients, such as those recently announced by Ken Paxton in Texas. This Supreme Court decision now makes it much, much harder for him to get away with silencing those therapists whose therapy affirmed their patients’ identity by putting their license at risk if they do.

The main problem with this decision however is that the Court picked a law prohibiting conversion therapy as the moment to finally articulate that heightened scrutiny applies with respect to licensing, including medical licensing. Conversion therapy, as Justice Jackson described in her dissenting opinion, is a scientifically-discredited approach “designed to ‘convert’ a person’s sexual orientation or gender identity, so that the person will become heterosexual or cisgender.” [Dissent p.3]. Historically it has been provided via “aversive modalities,” that many have likened to torture, such as “inducing nausea, vomiting, or paralysis in patients or subjecting them to severe electric shocks to telling patients to snap an elastic band on their wrists in response to nonconforming thoughts.” [Dissent p.3]

Importantly, however, to the extent that any law prohibits these practices, those laws remain in force—this decision does not affect such laws. (“The question before us is a narrow one. Ms. Chiles does not question that Colorado’s law banning conversion therapy has some constitutionally sound applications. She does not take issue with the State’s effort to prohibit what she herself calls ‘long-abandoned, aversive’ physical interventions.” [Majority p.7]). But it does reach conversion therapy delivered via talk therapy, where therapists “seek to encourage patients to change their behavior in an attempt to ‘change’ their identity” still are. [Dissent p.3]. As Jackson explained, this approach also causes real harm. [Dissent p.4-5]. And it’s a kind of harm that states like Colorado, who passed the law challenged here, have an interest in stopping. [Dissent p.5-7].

Making it hard for states to do so raises a number of concerns, such as that the decision will give a veneer of legitimacy to conversion therapy and stoke the hostile anti-LGBTQ+ attitudes driving it, as well as create the risk that conversion therapy, at least insofar as it includes talk therapy, might be something that minors could be legally subjected to in Colorado and elsewhere. There is also the fear that even if the Court has now articulated a good rule about heightened scrutiny it will only remember to apply it in cases like these where it will lead to results consistent with the Court majority’s biases—in other words, while the Court may be happy to subject Colorado’s anti-conversion therapy rule to strict scrutiny, there is the fear that it will conveniently forget to apply it to, say, Texas’s law trying to punish those who refuse to engage in it.

It also raises a collateral concern even on the speech-protection front, that subjecting licensure requirements to strict scrutiny could have the practical effect of diluting the standard. As Jackson also noted, we have long allowed states to regulate medical professionals, [Dissent p.8], as well as other licensed professionals like lawyers, and much of the regulation is directed to how licensed practitioners speak in some way as they provide their services. Perhaps all these efforts could actually pass strict scrutiny. In fact, it’s even still possible that Colorado’s law might yet survive it; although Justice Gorsuch’s majority opinion casts some doubt, the case is not over.

Rather than deciding it for themselves, the Court remanded the case back to the lower courts to this time apply the more exacting strict scrutiny standard rather than the less-demanding rational basis review they originally applied. Presumably there will be more opportunity for briefing and argument to show how the particular harm of conversion therapy creates the compelling state interest Colorado needed to act, and that its prohibition of licensed therapists from providing it via talk therapy is a remedy that is sufficiently narrowly tailored.

But the problem with applying strict scrutiny to so much regulation targeting licensing is that it might start to become too easy to satisfy when there are strong policy reasons to favor the government action, and as a result strict scrutiny will no longer be useful as a standard if it essentially allows everything, instead of being a meaningful filter. There are after all always compelling reasons for the government to care about the quality of the services licensees deliver via their professional expression, but just because the government has a valid reason to regulate does not mean that everything it does to regulate is constitutional.

Strict scrutiny also requires that the state action be narrowly tailored, in addition to being motivated by a compelling reason, and it’s too easy for courts to skip that part of the analysis, as we saw with the TikTok ban when it was somehow blessed by the DC Circuit. And the fear is that the more strict scrutiny is applied to what is fairly ordinary state regulation—of licensed practitioners—the more likely it will have the practical effect of creating precedent that dilutes the standard so that it is no longer so strict when we need it to be, especially for state action that is more exceptional. (On the TikTok ban the Supreme Court had greenlighted it using a lesser standard, which was itself extremely problematic as the ban should have been found unconstitutional, but at least the tool that should have applied to it remained sharp for future use, rather than dulled by this bad decision.)

On the other hand, a decision upholding the lower courts’ use of rational basis review would have done no one any favors. As Justice Kagan wrote in her concurrence, joined by Justice Sotomayor, it is easy to imagine a law that mirrors what the Colorado one does, prohibiting talk therapy that accepts LGBTQ+ identity instead of challenges it, and now advocates are left with a much more powerful tool to challenge it.

Of course, it does not matter what the State’s preferred side is. Consider a hypothetical law that is the mirror image of Colorado’s. Instead of barring talk therapy designed to change a minor’s sexual orientation or gender identity, this law bars therapy affirming those things. As Ms. Chiles readily acknowledges, the First Amendment would apply in the identical way. [Concurrence p.3]

As Texas shows, such a situation is not hypothetical. But now with this decision people challenging such censorial government efforts can turn to long-established First Amendment doctrine in their fight. And the doctrine remains stable, rather than something now swiss-cheesed with bespoke exceptions tied to certain policy preferences. No matter how valid those preferences, if they can be given special constitutional treatment then so can the bad ones. This decision helps buttress the guardrails preventing speech from being protected or not based on whether the government likes it, which is the whole reason we have the First Amendment, to make sure government preferences cannot dictate what views people can express.

Which is especially important when the courts cannot be trusted to overcome their biases to have good sense about which policy preferences are good and bad. The Supreme Court of course only has itself to blame that the public is so primed to believe that its decisions are driven by its biases and not neutral, sustainable doctrine. But nevertheless this decision still stands as an important declaration of law that is consistent with existing First Amendment jurisprudence and one that will ultimately leave everyone, including those challenging government actions attacking LGBTQ+ interests, far better off than if the Court had let the lower courts’ decisions invalidating the law stand after using a less speech-protective rule. In fact it will be an important one for anyone fighting censorship in any context, including those we generally talk about here, to use, because with this decision, the rule that has long been the rule remains the rule: when a government action non-incidentally touches on speech, is content-based, and is not viewpoint neutral, strict scrutiny applies.

Per this decision, a law targeting what therapists can say inherently involves speech, and not in an incidental way. And it targets it in a way that is not viewpoint-neutral; it has a specific preference, that conversion therapy is bad. As a result, as a law that targets the content of speech in a way that is not viewpoint-neutral, strict scrutiny, a more exacting standard than the rational basis review the lower courts had used, is required.

Turning to the merits, both the district court and the Tenth Circuit denied Ms. Chiles’s request for a preliminary injunction. The courts recognized that Ms. Chiles provides only “talk therapy.” And they acknowledged that Colorado’s law regulates the “verbal language” she may use. But, the courts held, the main thrust of the State’s law is to delineate which “treatments” and “therapeutic modalit[ies]” are permissible. Accordingly, the courts reasoned that Colorado’s law is best understood as regulating “professional conduct.” At most, they continued, Colorado’s law regulates speech only “incidentally” to professional conduct. As a result, the courts concluded, Colorado’s law triggers no more than “rational basis review” under the First Amendment, requiring the State to show merely that its law is rationally related to a legitimate governmental interest. Because the State satisfied that standard, the courts held that Ms. Chiles was not entitled to the relief she sought. [Majority p.6]

[…]

Consistent with the First Amendment’s jealous protections for the individual’s right to think and speak freely, this Court has long held that laws regulating speech based on its subject matter or “communicative content” are “presumptively unconstitutional.” Reed v. Town of Gilbert, 576 U. S. 155, 163 (2015). As a general rule, such “content-based” restrictions trigger “strict scrutiny,” a demanding standard that requires the government to prove its restriction on speech is “narrowly tailored to serve compelling state interests.” Ibid. Under that test, it is ” ‘rare that a regulation . . . will ever be permissible.’ ” Brown v. Entertainment Merchants Assn., 564 U. S. 786, 799 (2011) (quoting United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 818 (2000)).

We have recognized, as well, the even greater dangers associated with regulations that discriminate based on the speaker’s point of view. When the government seeks not just to restrict speech based on its subject matter, but also seeks to dictate what particular “opinion or perspective” individuals may express on that subject, “the violation of the First Amendment is all the more blatant.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829 (1995). “Viewpoint discrimination,” as we have put it, represents “an egregious form” of content regulation, and governments in this country must nearly always “abstain” from it. Ibid.; see also Iancu v. Brunetti, 588 U. S. 388, 393 (2019) (describing “the bedrock First Amendment principle that the government cannot discriminate” based on view-point (internal quotation marks omitted)); Good News Club v. Milford Central School, 533 U. S. 98, 112–113 (2001); Barnette, 319 U. S., at 642. [Majority p.8-9]

[…]

As applied here, Colorado’s law does not just regulate the content of Ms. Chiles’s speech. It goes a step further, prescribing what views she may and may not express. For a gay client, Ms. Chiles may express “[a]cceptance, support, and understanding for the facilitation of . . . identity exploration.” For a client “undergoing gender transition,” Ms. Chiles may likewise offer words of “[a]ssistance.” But if a gay or transgender client seeks her counsel in the hope of changing his sexual orientation or gender identity, Ms. Chiles cannot provide it. The law forbids her from saying anything that “attempts . . . to change” a client’s “sexual orientation or gender identity,” including anything that might represent an “effor[t] to change [her client’s] behaviors or gender expressions or . . . romantic attraction[s].” [Majority p.13]

But even if the law as it stands can’t survive strict scrutiny, in her concurrence, joined by Justice Sotomayor, Justice Kagan suggested ways the law might be amended so that it could be upheld.

It would, however, be less [likely to be unconstitutional] if the law under review was content based but viewpoint neutral. Such content-based laws, as the Court explains, trigger strict scrutiny “[a]s a general rule.” But our precedents respecting those laws recognize complexity and nuance. We apply our most demanding standard when there is any “realistic possibility that official suppression of ideas is afoot”—when, that is, a (merely) content-based law may reasonably be thought to pose the dangers that viewpoint-based laws always do. Davenport v. Washington Ed. Assn., 551 U. S. 177, 189 (2007). But when that is not the case—when a law, though based on content, raises no real concern that the government is censoring disfavored ideas—then we have not infrequently “relax[ed] our guard.” Reed, 576 U. S., at 183 (opinion of KAGAN, J.); see Davenport, 551 U. S., at 188 (noting the “numerous situations in which [the] risk” of a content-based law “driv[ing] certain ideas or viewpoints from the marketplace” is “attenuated” or “inconsequential, so that strict scrutiny is unwarranted”). Just two Terms ago, for example, the Court declined to apply strict scrutiny to a content-based but viewpoint-neutral trademark restriction. See Vidal v. Elster, 602 U. S. 286, 295 (2024); id., at 312 (BARRETT, J., concurring in part); id., at 329–330 (SOTOMAYOR, J., concurring in judgment). In the trademark context, as in some others, experience and reason alike showed “no significant danger of idea or viewpoint” bias. R. A. V., 505 U. S., at 388.

The same may well be true of content-based but viewpoint-neutral laws regulating speech in doctors’ and counselors’ offices.* Medical care typically involves speech, so the regulation of medical care (which is, of course, pervasive) may involve speech restrictions. And those restrictions will generally refer to the speech’s content. Cf. Reed, 576 U. S., at 177 (Breyer, J., concurring in judgment) (noting that “[r]egulatory programs” addressing speech “inevitably involve content discrimination”). But laws of that kind may not pose the risk of censorship—of “official suppression of ideas”—that appropriately triggers our most rigorous review. R. A. V., 505 U. S., at 390. And that means the “difference between viewpoint-based and viewpoint-neutral content discrimination” in the health-care context could prove “decisive.” Vidal, 602 U. S., at 330 (opinion of SOTOMAYOR, J.). Fuller consideration of that question, though, can wait for another day. We need not here decide how to assess viewpoint-neutral laws regulating health providers’ expression because, as the Court holds, Colorado’s is not one. [Concurrence p.3-4]

Ultimately, despite all of the concerns, the decision is still a good one that will leave everyone better off. And not just for cases that reach the Supreme Court but in every state and federal court hearing every challenge of laws trying to penalize certain views, including those accepting of LGBTQ+ identities. Whereas a decision to the contrary, one that would have allowed a rational basis standard to be the test for the law’s constitutionality, could be used to defend laws that, instead of fighting LGBTQ+ prejudice as this one tried to do, instead advanced it. As Texas illustrates, already there are examples of certain government actors attempting to impose their biased viewpoints via licensing requirements for therapists. This decision, even if it may stand as an individual reflection of LGBTQ+ animus by this Supreme Court, still makes further state action motivated by it that much harder for any government actor to impose.

The expression, “to make a federal case out of something” usually describes making a bigger deal out of something than it should be. But in the case of Anthropic and Hegseth, Trump, and the Department of Defense*, this federal case is actually quite simple: what the government defendants did to Anthropic is beyond the bounds of anything the law or Constitution would allow. It didn’t require some complicated analytical parsing to see the problem with the Administration’s behavior, and the remedy is straightfoward: there’s now an injunction depriving that behavior of any effect (albeit stayed for seven days).

But the government is only restrained as to what it did that was actually illegal. Importantly, the injunction clarifies that to the extent that the government could lawfully stop working with Anthropic, it remained fully able to divorce itself. From the full paragraph on the last page of the preliminary injunction order itself articulating what has been restrained:

This Order restores the status quo. It does not bar any Defendant from taking any lawful action that would have been available to it on February 27, 2026, prior to the issuances of the Presidential Directive and the Hegseth Directive and entry of the Supply Chain Designation. For example, this Order does not require the Department of War to use Anthropic’s products or services and does not prevent the Department of War from transitioning to other artificial intelligence providers, so long as those actions are consistent with applicable regulations, statutes, and constitutional provisions.

As the decision justifying the injunction explains, this case wasn’t about whether and how DOD could use Anthropic and whether Anthropic could have a say in how it was used, which was the issue underpinning the contract dispute between the two. Had it been, then the DOD could have simply walked away from the product. The problem is that the government didn’t just stop doing business with Anthropic; it went further, and it is those actions that broke the law.

The question here is whether the government violated the law when it went further. After Anthropic went public with its disagreement with the Department of War, Defendants reacted with three significant measures that are the subject of this lawsuit. First, the President announced that every federal agency (not just the Department of War) would immediately ban Anthropic from ever having another government contract. That would include, for example, the National Endowment for the Arts using Claude to design its website. Second, Secretary Hegseth announced that anyone who wants to do business with the U.S. military must sever any commercial relationship with Anthropic. That would mean a company that used Claude to power its customer service chatbot could not serve as a defense contractor. Third, the Department of War designated Anthropic a “supply chain risk,” a label that applies to adversaries of the U.S. government who may sabotage its technology systems. That designation has never been applied to a domestic company and is directed principally at foreign intelligence agencies, terrorists, and other hostile actors. [p.1-2]

And the court counts several ways that the government’s actions were likely illegal. At minimum, Anthropic suffered a due process violation for not having notice and an opportunity to respond to the government’s sudden supply chain risk designation, which threatened a cognizable liberty interest the Fifth Amendment protects. (“The record shows that the Challenged Actions threaten to cripple Anthropic by not only stripping it of billions of dollars in federal contracts and subcontracts but also by labeling it as an adversary to the United States and ending its ability to have any commercial relationship with any company that might want to do business with DoW.”) [fuller analysis p.24-29]

The “supply chain risk” designation was also likely “both contrary to law and arbitrary and capricious.” On the first point, there are two statutory paths for designating a vendor a supply chain risk, and this case addressed just one of them—the other will be addressed by the DC Circuit. But it found the government’s claim it was using the statutory authority properly to be wanting: First, Anthropic’s conduct did not meet the statutory definition of a supply chain risk.

On the record before the Court, Anthropic’s conduct does not appear to be within the definition of “supply chain risk” in Section 3252. Section 3252 defines a supply chain risk as limited to “the risk that an adversary may sabotage, maliciously introduce unwanted function, or otherwise subvert . . . a covered system.” 10 U.S.C. § 3252(d)(4). Assuming without deciding that a domestic company can be an “adversary,” the plain text of the statute is directed at covert acts or hacks, not overt positions taken during contract negotiations. Indeed, it is difficult to understand how one could sabotage, maliciously introduce an unwanted function, or subvert an information technology system by publicly announcing usage restrictions or insisting on such restrictions in conversations with DoW. Defendants appear to be taking the position that any vendor who “push[es] back” on or “question[s]” DoW becomes its “adversary.” (Dkt. No. 128 at 41.) That position is deeply troubling and inconsistent with the statutory text. [p.30-32]

And second, those procedural rules the government blew off to invoke the statute, such as the need to notify Congress first, actually mattered. Despite what the government argued at oral argument, that the Congressional notification requirements were only for the benefit of Congress, the court found that they were important safeguards Congress had built into the statute to prevent its abuse and therefore non-optional. (“Section 3252 and its enabling regulations create institutional safeguards—which the Secretary must complete before making a designation—to ensure that its designation is applied properly. The Supply Chain Designation failed to comply with these mandated procedural safeguards.”) [see analysis p.32-34].

In addition, the designation itself was likely arbitrary and capricious. As the court noted early in its decision (emphasis added):

The Department of War provides no legitimate basis to infer from Anthropic’s forthright insistence on usage restrictions that it might become a saboteur. At oral argument, government counsel suggested that Anthropic showed its subversive tendencies by “questioning” the use of its technology, “raising concerns” about it, and criticizing the government’s position in the press. Nothing in the governing statute supports the Orwellian notion that an American company may be branded a potential adversary and saboteur of the U.S. for expressing disagreement with the government.[p. 2; further analysis p.35-37 (“In sum, the contradictory positions, the procedural defects, and the rushed process following a public declaration of the foreordained conclusion all indicate that the actions were arbitrary and capricious.”)]

And then there is the problem at the heart of the matter: that it appears the government is trying to punish Anthropic for daring to criticize it, and that sort of retaliation for speech violates the First Amendment.

The record supports an inference that Anthropic is being punished for criticizing the government’s contracting position in the press. In their announcements, the President and Secretary Hegseth called Anthropic “out of control” and “arrogant,” describing its “sanctimonious rhetoric” as an attempt to “strong-arm” the government. The Department of War’s records show that it designated Anthropic as a supply chain risk because of its “hostile manner through the press.” Punishing Anthropic for bringing public scrutiny to the government’s contracting position is classic illegal First Amendment retaliation. [p.2]

And it violates the First Amendment not only by impinging on Anthropic’s right to speak, but everyone else, who is now deterred from speaking out as well, even on matters of public concern like ethical use of AI, given that the government is now inflicting consequences on those who speak in ways it doesn’t like. To the court, the government’s action looks clearly retaliatory. (“The record shows that Defendants’ conduct appears to be driven not by a desire to maintain operational control when using AI in the military but by a desire to make an example of Anthropic for its public stance on the weighty issues at stake in the contracting dispute.”) [p.19]. A retaliation claim can succeed when (1) the plaintiff was engaged in constitutionally protected activity, (2) the defendant’s actions would “chill a person of ordinary firmness” from continuing to engage in the protected activity, and (3) the protected activity was a substantial motivating factor in the defendant’s conduct—in other words, that what the defendant did was intended to chill speech, and here the court found all these prongs met. [p.20].

On the first, Anthropic was publicly staking out a position on what deployments of Claude are currently unsafe and what rights Anthropic has to allow Claude’s use by the government only with certain safety restrictions, which the court found to be a matter of public concern and thus protected by the First Amendment. (“[T]he record shows that Anthropic and its CEO, Dario Amodei, are a loud and influential voice regarding the capabilities, risks, and safe uses of AI technology.”) [p.20]. As to the second, there was plenty of evidence of speech being chilled:

Anthropic has submitted evidence that the Challenged Actions threaten to cripple the company and chill public debate. See supra Section II.G. Several amicus briefs support this conclusion. A group of 37 individuals working on AI technology assert that the Challenged Actions “chill[] professional debate on the benefits and risks of frontier AI systems and various ways that risks can be addressed to optimize the technology’s deployment.” (Dkt. No. 24-1 at 8.) An industry group of “values-led investors” warns that the Challenged Actions chill speech necessary to allow them to direct their investments to support the “principles and values” they care about. (Dkt. No. 77-1 at 12.) In short, the Challenged Actions easily qualify as ones which would chill a person of ordinary firmness from continuing to engage in further protected speech amici in the case showed how everyone’s speech was being chilled by what the government had done.[p.21]

And as for the third, the government’s behavior clearly resulted from displeasure with Anthropic’s views and the desire to relinquish them.

Secretary Hegseth expressly tied Anthropic’s punishment to its attitude and rhetoric in the press. He stated that “Anthropic delivered a master class in arrogance.” (Dkt. No. 6-21 at 2.) Referring to Anthropic and Amodei, he further stated: “Cloaked in the sanctimonious rhetoric of ‘effective altruism,’ they have attempted to strong-arm the United States military” through their “corporate virtue-signaling” and “Silicon Valley ideology.” (Id.) “Anthropic’s stance is fundamentally incompatible with American principles.” (Id.) The President described Anthropic as “radical left, woke company” and its employees as “leftwing nut jobs,” who “made a DISASTROUS MISTAKE trying to STRONG-ARM the Department of War.” (Dkt. No. 6-20 at 2.) Read in context of these repeated references to rhetoric and ideology, the term “strong-arm” in the Presidential Directive and the Hegseth Directive appears to be characterizing Anthropic as applying public pressure. […] These specific references to Anthropic’s viewpoint and public stance are direct evidence of what motivated Defendants’ decision-making.[p.21-22]

And the government’s defense—that Anthropic’s “contracting position” is conduct, not speech entitled to First Amendment protection, and that Anthropic’s refusal to accept DOD’s terms was what prompted the government’s actions—was unavailing.

First, without reaching the question of whether private contract negotiations alone could constitute protected activity under the First Amendment, the record shows that Anthropic engaged in protected speech when it took public the parties’ contracting impasse and the reasons behind its refusal to agree to DoW’s terms. (See, e.g., Dkt. Nos. 6-7, 6-18.) As already explained, Anthropic’s views on this matter fall within the heart of what the First Amendment protects: “subject[s] of general interest and of value and concern to the public” and “of legitimate news interests.” See Snyder, 562 U.S. at 452–53 (citation omitted). Therefore, to the extent Anthropic publicly discussed its “contracting position,” that speech is protected by the First Amendment.

Next, Defendants argue that even if Anthropic’s public statements constitute protected speech, the contract dispute—not Anthropic’s speech—was the motive and “but for” cause of the Challenged Actions. (Dkt. No. 96 at 22–24.) They point out that although Anthropic and Amodei have long advocated for AI safety, Defendants took the Challenged Actions only after Anthropic refused to remove its usage restrictions. But Defendants’ own actions belie the notion that Anthropic’s contracting position is what drove the Challenged Actions. Anthropic had imposed its usage restrictions from the beginning of DoW’s use of Claude Gov, and no one had ever suggested that this indicated that Anthropic was untrustworthy or a potential saboteur. To the contrary, Anthropic passed extensive vetting at that time and was praised by the government, which had made arrangements to expand the company’s role. It was only when Anthropic publicly discussed its dispute with DoW that Defendants criticized its rhetoric and ideology and adopted the punitive measures at issue.[p.22-23]

Throughout the decision the court observes that if the dispute here were just over the contract, then surely the government would have just stopped using Claude. But it didn’t just do that; it did more. And that more is now enjoined. The February 27 Presidential Directive from Trump “ordering all federal agencies to cease use of Anthropic’s technology” is to have no effect, nor is any agency action (by any agency,** not just the DOD), taken in response to it. No one in the Trump Administration (Anthropic had named pretty much every agency as defendants, so that’s basically how it boils down) may “issu[e] or maintain[] any guidance, directive, communication, or instruction to any officer, employee, contractor, or agent, in furtherance of or implementing the Presidential Directive” or “tak[e] any other action to implement, effectuate, or further the purposes of the Presidential Directive.”

Meanwhile, Hegseth and the DOD are also enjoined from “implementing, applying, or enforcing in any manner” what the court referred to as the Hegseth Directive, issued later on February 27, designating Anthropic a “Supply-Chain Risk to National Security” and “directing that no contractor, supplier, or partner doing business with the United States military may conduct commercial activity with Anthropic.” Nor can it implement, apply, or enforce anything in the March 3 letter DOD sent notifying Anthropic of the supply chain designation and the associated determination formalizing that designation under 10 U.S.C. § 3252. Hegseth and the DOD are also enjoined from “[f]rom issuing or maintaining any guidance, directive, communication, or instruction to any officer, employee, contractor, or agent, in furtherance of or implementing the Hegseth Directive or the Supply Chain Designation [and from] taking any other action to implement, effectuate, or further the purposes of the Hegseth Directive or the Supply Chain Designation.”

* No, it’s not the “Department of War” as unfortunately both parties and even the court called it, for reasons that elude. Perhaps Anthropic feared it would pull a Trump-friendly judge and need to speak the Administration’s language in order to be treated fairly, but such was not the case, at least in this piece of the case in the Northern District of California—maybe it will be different in the second piece of the case in the DC Circuit. But it’s not clear why the court had to humor them; it applies law, and the law, as passed by Congress to create, name, and fund the agency, calls it the Department of Defense, with Hegseth having been appointed to a specific job called the “Secretary of Defense.” If Congress wanted it to be called the “Department of War” it could have named it thus, but it found there were tangible policy reasons not to when it in fact changed its name to the DOD instead. It typifies the Trump Administration’s typical indifference to any law that might happen to govern any of its behavior to ignore it and Congress’s authority to pass it by unilaterally trumping Congress’s wishes and rename it, but no one else needs to indulge yet another of their abuses of power by humoring their choice.

** The Executive Office of the President is not bound by the injunction directly, despite being a named defendant. Nevertheless, “[l]ike all other persons, EOP is barred from acting for, with, by, through, or under authority from any enjoined Defendant, or in concert or participation with any enjoined Defendant, in any manner inconsistent with the preliminary injunction order.” [p.42]

It has long been clear: Trump needs to be removed from office before he can inflict even more damage than he already has. But he doesn’t just need to be stopped; for America to have a future he also needs to be repudiated. Impeachment speaks to each need, to both make clear his behavior is beyond anything we would ever tolerate as well as remove his capacity to continue it.

But by not even attempting to impeach him, or any of his malign administration officials, he not only remains able to wreak more destruction but he now does it with Congress’s blessing. Instead of being repudiated, his behavior is endorsed. Because one could fairly conclude that if anyone in Congress had an issue with what Trump is doing, then surely they would try to do something to stop it with the power they have. Yet, with the so far sole exception of Representative Green, who has actually tried, twice, to file impeachment articles against Trump, no one—from any party—has filed any against anyone.

Obviously many in Congress do in fact object to what Trump does—there are tweets and speeches saying as much. But it’s all sound and fury signifying nothing. Tweets and speeches do not amount to any sort of useful action. And through inaction the only message we’re sending is that no one thinks it is worth doing anything more.

A stunned and increasingly wounded world is now coming to terms with the realization that Trump’s disqualifying misbehavior is the sort of thing can happen in America, and moreover, the sort of thing that will be allowed to happen in America. His abuse of power—as well as his warmongering, war criming, corruption, ignorance, incompetence, racism, and range of other unconstitutional, illegal, and even criminal activities—is apparently something not just possible under our constitutional order but enabled. As we watch an addled monster drive us all towards disaster, with the rest of the U.S. government willingly along for the ride and no one with the constitutional authority even trying to apply the brakes, one is left to conclude that, at best, our vaunted Constitution must not provide an effective immune system to address Trump’s antidemocratic malfeasance, or, worse, that Americans are fine with all of it, because, even if there were a mechanism to stop him, there’s apparently no one with the authority to trigger it who thinks it’s worth bothering with. Both conclusions paint a very different picture of what sort of country the United States is than most had previously imagined, and it is this re-envisioning of America that will affect how others let the country and its people live in the wider world even after Trump is finally gone.

Of course, there is actually an immune system. The fundamental power to remove Trump from office—impeachment—is still there, as provided by the Constitution; the issue is that no one is willing to use it. And that unwillingness is ultimately what the world is judging, because when they wonder why no one is using it, it’s impossible to avoid concluding that no one else in the government of the United States of America, despite everything Trump is doing, thinks there’s actually a problem to address.

Perhaps this conclusion is unfair, though, so let’s take a moment to consider whether there could be any sort justification for Congress’s inaction. And, more specifically, the Democratic members of Congress, because while it’s an indefensible abdication of their own oath of office for Republican members of Congress to refuse to police Trump, because in theory he’s their guy, it’s something else for the political opposition to also refuse to, especially when he’s supposedly not their guy at all.

Perhaps that opposition may begin to explain the reluctance to take action: for better or worse, Trump was duly elected President and in general it is a good thing if democratic expressions of political will are respected, even, and especially, by those who disagree with them. As Trump himself illustrates, de-legitimizing election results is not healthy for a sustainable democracy. There may also be the pragmatic concern that taking aim at someone the people chose is bad politics, because it will antagonize the electorate so that they never vote for you, although recent polls and election results strongly suggest that this fear is unfounded. Furthermore, Trump never should have been on the ballot in the first place. As an ineligible insurrectionist he never was someone that Americans should have been able to choose to be President, and that he was nevertheless voted into office already means his reign is inherently illegitimate, and in a way that undermines our democracy more than if its legitimacy were challenged. But even setting his eligibility doubts aside, it’s one thing to acknowledge Trump as the legitimately-elected President. But it’s another entirely to allow him, as President, more power than the office actually grants him and shrug off the unconstitutional ways he abuses it. The Constitution only grants him so much, and no one has the right to grant him more by failing to check him when he has nevertheless taken it.

Perhaps some of the reluctance to press for impeachment is out of the concern that, terrible president or no, Congress still has a job to do to run the country, and bad things can happen if it turns its attention away. But this sort of mis-prioritization can’t withstand scrutiny either. For one thing, bad things are already happening by not acting to stop Trump. And not just all the bad things he’s doing, but all the bad things that Congress is doing too, like not passing ACA subsidies, or spending its time instead doing antidemocratic things like trying to pass First Amendment-violating legislation to censor the Internet, as if this moment of looming autocracy were a good time to join in on the constitutional violations too.

Perhaps the reticence to pursue impeachment is motivated by the desire to remain cordial with colleagues across the aisle, in the hopes that it could lead to mutually-negotiated solutions. If so, however, it doesn’t seem like such politesse is paying off particularly well—after all, those ACA subsidies still haven’t been passed, and Trump remains in office, doing things that hurt Americans, including the constituents of both Democrats and Republicans, along with the rest of the world and our standing in it. While it is true that there have been some small successes managing to restrain Trump here and there using more traditional political pressure, at best such efforts are like trying to drain the ocean with a teaspoon, one issue at a time, while meanwhile a deluge of chaos drowns us all. Congress has still left us all defenseless to danger that by not even trying to do what it would take to stop it.

And even if the concern about bringing impeachment now is that it wouldn’t have the votes to pass, it would still be bad math. First, by not pressing impeachment it prevents the political calculus from evolving so that there could come to be enough votes—no one needs to join the push for it if there’s no push happening. And it makes it doubtful that there would ever be enough votes, not even after midterms—assuming, of course, that an unchecked Trump doesn’t do something to interfere with them happening. If Congress is waiting for voters to send them more colleagues who will join them in impeaching, voters will need to know that there is an impeachment effort to be joined. Yet so far there is none. Not impeaching sends the signal that impeachment isn’t warranted, and if it isn’t warranted by now, there’s little reason for anyone to think that those already not bothering to try are ever going to change their mind and start.

Ultimately, no matter what members of Congress tell themselves to try to justify why they have acquiesced to Trump instead of playing the best card the Constitution gave them to stop him, all of those excuses ultimately fall flat. Trump is destroying America, but by refusing to use the tools the Constitution gave them to stop him, it is Congress that is finishing it off for good. Not just by letting him wreck everything we’ve built for 250 years, and the lives and liberties—as well as global and economic stability—that depended on the Constitution’s promise being fulfilled. But by doing nothing it instead sends the very loud message, now reverberating around the globe, that everything he and his subordinates are doing is fine, when the reality is anything but.

And the world is noticing. When they look at America they see it not as a strong, stalwart ally, but a frail country with weak civic institutions vulnerable to capture, indifferent to such a fate as long as it doesn’t affect the price of eggs, and possibly not even then. Worse, as Congress refuses to defend America from the exigent danger Trump represents to it and the world, and through its inaction instead enable it, the world is left to conclude that Trump is what America wants, because no one governing it is saying otherwise.

Without a sign that America does not want Trump, other countries are forced to presume it does and act accordingly, even when doing so is bad for themselves and the future—and even us. Not only does it mean they can’t support us in our effort to rid ourselves of him, because there is no effort to support, but in the absence of any official pushback they have little choice but to accept him as legitimate, even though doing so only reinforces the power he is abusing and makes reclaiming America from his lawless grasp that much harder to eventually effect.

Yet there seems to be this naïve belief held by many of the same cowered members of Congress currently doing nothing that somehow the problem will magically resolve, and once Trump is somehow eventually out of office America will simply be welcomed back to the world stage as a respected member of the global order. As if all we need to do is wait for his chaotic storm to pass and then we can all pick up where we left off. And as if the world will simply forgive and forget the real and often irreparable harm Trump has been inflicting, far beyond America’s borders, and that America has been refusing to even try to lift a finger to stop.

The world will not. Failing to impeach, among all its other infirmities, is a long-term foreign policy problem. Without impeachment, to not just dislodge Trump from office so he can no longer hurt us anymore but unequivocally condemn the harm he has already inflicted, and not just on ourselves, we will be resented, and rightly so. Not for what Trump has himself done, but for what we have been glad to let him do to us all.

This past weekend Section 230 turned 30 years old. In those 30 years it has proven to be a marvelous yet misunderstood law, often gravely, as too many, including in Congress and the courts, mistakenly blame it for all the world’s ills, or at least those that happen in some connection with the Internet. When in reality, Section 230 is not why bad things happen online, but it is why good things can happen. And it’s why repealing it, or even “just” “reforming” it, will not stop the bad, but it will stop the good.

Unfortunately, even 30 years in, these ignorant efforts to diminish or even outright delete the law continue, despite the harm that would result if they succeeded. Which is why this anniversary seems like a good time to review why many of the reasons why the hostility towards Section 230 is so misplaced. Here at Techdirt we’ve collectively all spilled a lot of digital ink over the years about why Section 230’s critics are wrong to condemn it, and not just a little bit but completely and utterly, as well as counter-productively. But on this celebratory occasion I thought it would be fun to look back on what I personally have written about Section 230—at least since its 20th birthday celebration and the piece I wrote then—and collect some of these “greatest hits” in a post to help get anyone new to thinking about Section 230, who may be unsure why those pushing to repeal it is so misguided, caught up on why Section 230 is not a law we should be messing with.

What Section 230 does. One reason that people get Section 230 wrong is that there are a lot of myths about it and what it does or does not do. A good place to start is with an overview of how it generally works, and if you like watching videos you can watch this presentation from a few years ago where I gave a crash course in its operation.

In short, though, Section 230 immunizes platform providers from liability in two key ways: for liability in what their users use their services for, and for liability that could possibly result in how they moderate their users’ use of their services. Section 230 aligns platforms providers with Congress and makes it possible for them to work towards what Congress wants—the most good material online, and the least bad—by making it legally possible for the providers to do the best they can to achieve it on both fronts. If it is legally safe for them to allow user expression, because they won’t have to fear being liable for it, they will allow the most good expression, and if it is legally safe for them to remove user expression, because they won’t have to fear being liable for their moderation, then, as this post explains, they will be able to remove the most that is bad.

But Section 230 is not some sort of special favor for Big Tech, as some have suggested. It’s not even one for startups, as others have alleged. In fact, it applies to regular people as much as it applies to anyone. Rather than it being any sort of subsidy, it instead operates more like a rule of civil procedure to make sure that platforms cannot be drained of resources having to defend themselves for whatever wrong a user’s conduct is accused. Which is also why “reforming” Section 230 effectively means repealing it, because nearly all the proposed reforms would make the statutory protection more conditional, but if platforms are unsure about whether they are protected or not and in jeopardy of having to litigate the question, then for all intents and purposes they are effectively unprotected, and they will act accordingly to defensively either deny more beneficial content, or leave up too much that is harmful (or both).

When Section 230 applies. One of the common myths about Section 230 is that it prevents anyone from ever being held responsible for how the Internet has been used. Not so; Section 230 does nothing to prevent anyone from being accountable for their own behavior. What it does not allow, however, is someone else being held accountable, namely the provider of the platform service they used, because, as discussed above, if the platform could have to answer for how any of their users used their services, they would never be able to offer their services, and if they couldn’t offer their services then there would be no Internet for anyone to use even for any of the good, useful, or important things we use it for.

Section 230 also doesn’t immunize platforms for their own actions, only those of their users. The issue sometimes is in telling the two apart, but as this post argues, it’s not actually as hard to figure out as some people would insist. First, the idea that there is some publisher/platform distinction is a fiction; the only thing that matters is whether the immune provider is providing an interactive computer service of some sort and someone else has provided the content, or if the platform has provided the content itself. And in the event we get confused about who the content provider is, we can look to see who imbued the offending expression with its allegedly wrongful quality, which more often than not is the user and not the platform. As we’ve understood since the Roommates.com case, that a platform has simply welcomed the expression isn’t enough to put the platform on the hook for it.

Furthermore, the type of content a platform might be immune for intermediating can be myriad, including online advertising, which is expression provided by others and then intermediated by a platform (despite what certain state governments think), online dating sites, or online marketplaces—although there have been some issues getting the courts to consistently recognize how Section 230 should apply in that context, even though the statutory history supports it. Although sometimes they still do.

Why Section 230 is important. Regulators can be tempted to take swings at Section 230 because it can be tempting to try to control what can be said on the Internet, and Section 230 gets in the way of those efforts. While the First Amendment also protects platforms’ ability to choose what user expression to facilitate, Section 230 makes that protection meaningful by making those choices practically possible. When they cannot be freely made, then the user expression they facilitate takes a hit.

Which is why efforts to change Section 230 are a problem, because of all the collateral damage they will cause to online expression.  But for some regulators, that censorship is the goal and why they have Section 230 in their sights. They want to prevent online expression, because too often it is online expression they don’t like. And, indeed, sometimes the speech is unfortunate, potentially even actionable.

But eliminating Section 230 is no solution at all. If we take away platforms’ ability to be platforms, then we take away everyone’s ability to use them to speak, no matter how important what they have to say is. It’s why we need to defend Section 230, even when it’s hard. There are always things that need to be said online, especially when we need to speak truth about power. Section 230 means we can. And we’d miss it if we couldn’t.